Doctors no doubt worry about lawsuits and may fear they will fall victim to a “frivolous” or trivial claim. However, a good malpractice attorney will not waste time if there is no evidence of negligence, which resulted in severe injury or death to the patient. Such cases are simply too expensive and difficult to pursue without a clear case of negligence and near-catastrophic injury.
A recent article targeted to doctors who are members of Medscape, an educational and social forum for physicians, discussed the issues of malpractice that physicians frequently discuss or hear from an attorney or at a seminar. The article defined some common legal concepts that may also be useful to patients who feel they have been the victims of medical negligence. A good malpractice attorney — such as those of Passen & Powell — will, of course, give you the best advice and will explain the finer points of the law, which differ now from state to state, depending upon the success of the tort reform movement in your state.
Over the past ten years or so, after intense lobbying by business interests represented by the U.S. Chamber of Commerce and the medical insurance community, many state legislatures passed laws that effectively limit the ability of someone who has been the victim of medical negligence to seek restitution. Some states have done this by capping limits on non-economic damages.
In Illinois, after the legislature passed a law capping damages in medical malpractice actions, the Supreme Court struck down the law as unconstitutional.
Other states have shortened the statute of limitations, and the clock begins ticking when the injured party “should reasonably have known of the injury.” Of course, the injured party’s injury may not reveal itself immediately or the injured person may not realize what has occurred or may not be aware of the significance of the result of some medical therapy.
The medical profession can be pretty opaque when it comes to issues of blame. Doctors are often unwilling to testify against their colleagues. To make matters worse, here are states now require expert witnesses from out of state to obtain a temporary license of sorts, that requires a rigid standard of expertise in order to testify about medical facts that are widely known by any physician.
The Medscape discussed the varying percentages of claims distributed among different medical specialties, and even between genders.
The Odds Strongly Favor the Physician
There is a general misconception that plaintiffs often receive “jackpot justice” and often prevail in “frivolous” cases of medical negligence.
Most cases are settled or dropped, and of the cases that go to trial, about ninety percent, are won by the physician. The jury typically favors the doctor.
Malpractice claims are usually either claims of medical negligence or wrongful death, although violation of informed consent or HIPAA violations are sometimes the cause of damages claimed by patients who sue their physicians.
The plaintiff must have a good case for the lawyer to even accept the case, let alone prevail. Specifically, a plaintiff must establish the duty of care the doctor owed he patient, a breach of that duty, and injury caused by the medical professional’s breach of duty.
Duty to the Patient
When a doctor takes care of a patient, a special relationship of obligation on the part of the doctor is the result. Sometimes, if you are an attending or supervising physician for a medical intern or resident and the trainee treats a patient at night in a way that results in injury, the attending physician may not even be present but still has a duty to that patient. In recent years, teaching hospitals have developed strict guidelines that often require the attending is in the hospital when his trainee is on call. The entire team, various levels of trainees that may include interns, residents, and fellow, are all responsible for that patient’s welfare, but the attending physician bears ultimate responsibility.
Sometimes a physician may be on call and ask a colleague to cover, but the nurse didn’t get the message and no one answered the call. If something happens to the patient, the physician on call may be held responsible even if they had made the proper arrangement that subsequently fell through. If a physician gets a call from the hospital about a patient who is established with someone in his group practice, and he is the doc on call for the group, the patient may have been admitted during the evening through the emergency department without ever seeing a member of the group practice, but the doctor will be expected to provide a verbal order. If the patient has a bad outcome, the physician who is on call for the practice and who may not yet have seen the patient in the hospital will be held liable because of the interpretation of duty.
Standard of Care
This is a phrase that is familiar to anyone involved in a medical malpractice lawsuit. Essentially, the doctor is expected to provide treatment that any reasonable physician with similar background and training would provide. Expert witnesses are called by both sides and normally disagree on the standard of care in the particular situation. Frankly, both teams of attorneys usually find someone to testify on behalf of their client. The rules related to standard of care sometimes vary from state to state, but in most states there is a national standard. Other states will allow an expert witness to testify to local practice standards.
Proof of Injury Occurrence
Injuries are usually pretty obvious, but sometimes an injury may occur simply because there is a lot of variability between patients and they all have unique medical histories and genetics and responses to different medical interventions. Even if everything is done properly, the patient doesn’t always have a good outcome. If something occurs that is out of the ordinary and there is a bad outcome, the occurrence may not be related to the outcome. Sometimes a patient may have an injury that results in a chronic medical condition, and that condition may lead to other outcomes like pressure ulcers and skin breakdown in someone with neurologic injuries. If the patient dies a year later from a blood infection resulting from the skin breakdown, the original cause is still the neurologic injury. The statute of limitations will determine the ability to file suit.
Burden of Proof
In a civil case, there is a lower standard of proof required when compared to criminal cases, which require proof that is beyond a reasonable doubt. When you bring a civil lawsuit, you only have to show a preponderance of evidence. This issue is one that both sides will argue vigorously to the jury. Both sides will differ on the weight of the evidence presented against the plaintiff.
Damages awarded in civil suits may include economic, noneconomic and punitive damages. These awards have been arbitrarily capped by “tort reform” legislation in many states, although many states, including Illinois, have found such laws to be unconstitutional.
Economic damages include the cost of medical care and loss of employment and income. Non-economic damages include pain and suffering and they are capped pretty severely now across the country. A patient may have a long lifetime as a paraplegic from an operative error, but the law will cap their potential compensation in many states.
Finally, punitive damages may be allowed in some states — although not in Illinois — in situations when there is strong evidence of wrongdoing on the part of the physician, including things like taking shortcuts, failing to keep up continuing medical education, lying about credentials, or ignoring significant patient complaints because they had something better to do that evening. That sort of malpractice usually involves an injury resulting from significant violations of ethical standards or blatant disregard for the patient’s care.
Most doctors who have hospital privileges or a group practice are required to have medical insurance, but there are doctors who “go bare.” Even in the case where there is a limitation of normally $1 million to $3 million dollars on the doctor’s policy, if the negligence is egregious and the injury severe, the doctor’s personal assets can be attached — although generally a doctor’s exposure will be limited by the extent of his or her insurance coverage so that any recovery is from the doctor’s insurance company.
If the injury occurred in a hospital, or if the patient saw one doctor in the emergency room, and a radiologist read his brain scan before he was admitted for treatment of an aneurysm by a neurosurgeon, the hospital and every doctor who saw him usually ends up as a defendant.
The type of article targeted at the physician audience always ends with tips that help physicians avoid a lawsuit. It is a real fear for every doctor, good and bad, mediocre, conscientious, or lazy.
What is worse is when an patient is injured because the doctor failed in his or her duty as a result of negligence, but the patient is unable to prevail in the courtroom because the cost of a malpractice lawsuit is high, the insurer has tremendous resources, and with diminishing returns as a result of caps on damages, many attorneys are reluctant to take cases on a contingent fee basis that may be complicated and difficult to explain to a jury that is already predisposed to favor the defendant.
If you believe you have a significant injury as a result of medical malpractice, then you should discuss your case with an attorney who specializes in the field of medical malpractice. The attorneys at Passen & Powell have the experience, skill and compassion to prevail in difficult cases of medical negligence. Call us today at 312-527-4500 for a Free Consultation.